The Thoughtful Disquisition of Legal Text – Panacea or Risk?
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Abstract
The author analyses the importance of interpretation of legal text for the functioning of law. The different types of interpretation are discussed aiming to determine their features and interaction. The article deals with the procedure of legal interpretation considering the approximation of legal norms and legal principles.
In Lithuania the prevailing tendency to expand the limits of judge’s freedom in interpretation of legal text and the occurring risks of legal subjectivism are noticeable. The author emphasises that the interpretation of legal text should originate from the logical-linguistic analysis of text. The thoughtful dis- quisition of legal text should be applied for elimination of insufficiency of logical – linguistic interpretation and for reviewing the propriety of outcomes of interpretation. The thoughtful disquisition of legal text permits to evaluate the determined legal norms from the ethical – social context viewpoint and proceeds as the combination of legal norms and legal principles. When the incompatibleness of legal norms and legal principles is determined, the interpreter gains the competence to depart from legal text. However, principles of law are the categories of eminently highness of abstraction and their content may be construed variously. In any case, any obliquity from the legal text should be reasoned.
The encouragement of activity of judges construing legal text might be associated with evaluation of functioning of various elements. Exclusive attention should be paid to legal education and nurturance of legal doctrine, consolidation of legal philosophy positions at the universities, formation of undivided judicial practice and continuous information about it.
The examples of judicial practice discovered in the article testify there are no settled clear standards of argumentation of legal text in Lithuania, what encumbers the effect of rightful expectations principle.
In Lithuania the prevailing tendency to expand the limits of judge’s freedom in interpretation of legal text and the occurring risks of legal subjectivism are noticeable. The author emphasises that the interpretation of legal text should originate from the logical-linguistic analysis of text. The thoughtful dis- quisition of legal text should be applied for elimination of insufficiency of logical – linguistic interpretation and for reviewing the propriety of outcomes of interpretation. The thoughtful disquisition of legal text permits to evaluate the determined legal norms from the ethical – social context viewpoint and proceeds as the combination of legal norms and legal principles. When the incompatibleness of legal norms and legal principles is determined, the interpreter gains the competence to depart from legal text. However, principles of law are the categories of eminently highness of abstraction and their content may be construed variously. In any case, any obliquity from the legal text should be reasoned.
The encouragement of activity of judges construing legal text might be associated with evaluation of functioning of various elements. Exclusive attention should be paid to legal education and nurturance of legal doctrine, consolidation of legal philosophy positions at the universities, formation of undivided judicial practice and continuous information about it.
The examples of judicial practice discovered in the article testify there are no settled clear standards of argumentation of legal text in Lithuania, what encumbers the effect of rightful expectations principle.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
